CONGRESS, UNITED STATES. 



147 



carries with it as an inseparable incident the laws of 

 the State so far as applicable and necessary, from 

 whose courts such transfer has been made. 



" I insist that this is not in harmony with 

 the genius of our institutions; is not consistent 

 with reason or sound policy, and is in direct 

 conflict with the law as decided by the Supreme 

 Court of the United States. In proof of this 

 position I read from the case of the United 

 States vs. Hudson and Goodwin, V Cranch Re- 

 ports : 



" The powers of the General Government are made 

 up of concessions from the several States. Whatever 

 is not expressly given to the former the latter express- 

 ly reserve. The judicial power of the United States 

 is a constituent part of these concessions. That power 

 is to be exercised by courts organized for the purpose, 

 and brought into existence by an effort of the legisla- 

 tive power of the Union. Of all the courts which the 

 United States may under their general powers consti- 

 tutc ; one only the Supreme Court possesses juris- 

 diction-derived immediately from the Constitution, 

 and of which the legislative power can not deprive it. 

 All other courts created by the General Government 

 possess no jurisdiction but what is given them by the 

 power which created them, and can be vested with 

 none but what the power ceded to the General Gov- 

 ernment will authorize them to confer. . . . The legis- 

 lative authority of the Union must first make an, act a 

 crime, affix a punishment to it, and declare the court 

 that shall have jurisdiction of the offense. . . . Certain 

 implied powers must necessarily result to our courts of 

 justice from the nature of their institution, but juris- 

 diction of crimes against the State is not among'thcse 

 powers. . . . To fine for contempt, etc., . . . are pow- 

 ers which can not be dispensed with in a court ; but all 

 exercise of criminal jurisdiction in common-law cases 

 we are of opinionis not within their implied powers. 



"This case is cited and approved in the 

 case of The United States vs. Cooledge et al., 

 1 Wheaton, 415 : 



" In the case of the United States vs. Bun-, which 

 arose in the Circuit Court of Virginia in 1807, the Chief- 

 Justice of the United States declared that the laws of 

 the several States could not be regarded as rules of 

 decision in trials for offenses against the United States, 

 because no man could be condemned or prosecuted in 

 the Federal court on a statute law. KenVs Com- 

 mentaries, I, section 334. 



"Further: 



" The great difficulty and danger is in leaving it to 

 the courts to say what is an offense against the United or passed 

 States when the law has not sufficiently defined it. 

 The safer course undoubtedly is to confine the juris- 

 diction in criminal cases to statute offenses duly defined 

 and to cases within the express jurisdiction given by 

 the Constitution. Kent's Commentaries, I, section 341. 



that occurred fifteen or twenty years ago. But 

 for offenses committed recently, in times of 

 profound peace, every man should he amena- 

 ble to the law he has violated and to the tribu- 

 nal authorized to vindicate that law. 



"The gentleman from Indiana [Mr. Orth] 

 also says of a bill now before the House for 

 the restriction of inferior Federal courts : 



"But it goes further, and repeals all laws trans- 

 ferring criminal cases from the State to the Federal 

 courts. That would be the effect of the law if passed. 



" The same position has been assumed by 

 others who have spoken in opposition to this 

 bill. 



"Mr. Speaker, no such consequence flows 

 from the legislation proposed in this Congress. 

 A complete, ay, the best, remedy for the trans- 

 fer of all causes containing a Federal ingredi- 

 ent, or against parties on account of any act 

 done as officers or representatives of the Gov- 

 ernment, is left. Section 709 of the Revised 

 Statutes is not touched by the legislation, and 

 provides for a transfer to the highest court 

 in our republic. I send it to the Clerk to 

 be read, that members may see that we are 

 not attempting any inroad upon constitutional 

 rights, nor to leave officers of the Government 

 without an impartial hearing." 



The Clerk read as follows : 



A final judgment or decree in any suit in the high- 

 est court of the State, in which a decision in the suit 

 could be had, where is drawn in question the validity 

 of a treaty or statute of, or an authority exercised 

 under the United States, and the decision is against 

 their > validity ; or where is drawn in question the 

 validity of a statute of, or an authority exercised under 

 any State ? on the ground of their being repugnant to 

 the Constitution, treaties, or laws of the United States, 

 and the decision is in favor of their validity ; or where 

 any title, right, privilege, or immunity is claimed under 

 the Constitution, or any treaty or statute of, or com- 

 mission held or authority exercised under the United 

 States, and the decision is against the title, right, 

 privilege, or immunity specially set up or claimed by 

 either party, under such Constitution, treaty, statute, 

 commission, or authority, may be rcexamined and 

 reversed or affirmed in the Supreme Court upon a writ 

 of error. The writ shall have the same effect as if the 



i udgment or decree complained of had been rendered 

 or passed in a court of the I 



United States. 



" Under these authorities the district and 

 circuit courts of the United States can not con- 

 vict its officers after their causes are removed, 

 Congress having never made their ' act a 

 crime ' or ' affixed a punishment to it.' No 

 such authority can result by mere implication. 

 Life is not taken nor liberty destroyed in any 

 such slipshod way by implication and result- 

 ant criminal jurisdiction. And, as these courts 

 have no power to punish, they become merely 

 tribunals to turn loose those who are charged 

 with high crimes. 



" I presume it is not the purpose of any one 

 to go back and change the mode of disposing 

 of cases which are founded upon difficulties 



The Supreme Court may reaffirm, reverse, modify, 

 or affirm the judgment or decree of such State court, 

 etc. 



Mr. Philips : " And what are the conse- 

 quences of these changes in the forum of jus- 

 tice? The expense of litigation is increased 

 enormously. The trouble of attending to it is 

 more than doubled. By the process of divid- 

 ing the suit already mentioned, there are two 

 suits where there should be but one, and they 

 probably hundreds of miles apart, and possibly 

 standing for trial on the same day. Strong 

 corporations and wealthy individuals are able 

 to attend and litigate in these courts, while the 

 poor are not, and are virtually deprived of their 

 legal 'right to a speedy . . . trial,' on account 

 of the crowded state of the dockets and the 

 impossibility of reaching the courts. 



" One of the charges our fathers made against 



